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Thoughts on the Indiana RFRA controversy

Here’s a really good explanation from Slate, written by three law professors, of how the controversial Indiana law absolutely gives businesses a license to discriminate against gays. I will now try to write something intelligent, or at least coherent, about this controversy.

Consider the case of a photography company that refuses, on religious grounds, to photograph a same-sex wedding. This is not a hypothetical: as the Slate piece explained, this actually happened in New Mexico, resulting in a lawsuit that went all the way to that state’s Supreme Court.

As a preliminary matter, I question whether any religion really requires that its adherents not provide photography services to same-sex weddings. There’s obviously nothing about wedding photography in the Bible, and if Jesus were around today, I think he’d probably say it’s OK to take the pictures. But I’ll grant that there are some Christian photographers out there who would refuse to work a same-sex wedding not out of bigotry but based on sincere religious beliefs, however misguided I find those beliefs.

So what should happen? There are at least four options:

1. One option, which I completely reject, is to stand with the photographers, to praise and defend these brave soldiers in the War on Christianity. This is probably what Governor Pence believes in his heart, and what truly horrible people like Rick Santorum will say out loud.

2. Another option, which a lot of people on the left treat as the obviously correct answer, is to use government power to force the photographers to work the wedding. This can presumably be done by making gays a protected class and characterizing the photographers’ refusal as discrimination–which it surely is, even though it may be motivated by sincere religious beliefs. It is not obvious to me that this is the best answer, or the only answer that a supporter of gay rights can give.

3. Another option is to treat the photographers with love and respect and hope they come around eventually. This approach has been advocated at times by the writer and gay-rights pioneer Andrew Sullivan, although I can’t find a good example right now. Using race as an analogy, there probably aren’t many business in the U.S. today that would discriminate against African-Americans if they could. Public opinion is moving rapidly in the direction of acceptance of and support for gay people. In time, this will cease to be an issue. We can speed the process by treating people like the Christian photographers with love and respect.

It’s important to recognize that this third option doesn’t do much of anything for the gay couple looking for a wedding photographer, and it certainly does seem unfair to have to tell them, you’re out of luck, I hope you can find another photographer.

4. The last option that I can think of is sort of the opposite of option 3. You still don’t involve the government, but you declare war on the Christian photographers. You organize a boycott. You use the internet to publicize their discriminatory policies. You generally do everything you can to make it as difficult as possible for companies to do business this way.

I must admit that as someone who leans libertarian, I am partial to this fourth option. The problem, of course, is that it could leave the same-sex couple in an even worse position than the third option would. Suppose the groom and groom live in a small, conservative town where just about everyone shares the religious beliefs of the photographers. The boycott is never going to get off the ground. You’d probably end up with a Chick-fil-A situation where huge numbers of people rally in support of the photographers.

In the end, I don’t know what the answer is, but I do think my fellow gay rights supporters should occasionally question whether more government intervention is always the right solution.